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On February 12, 1985, Pruett
raped, robbed and killed Wilma Harvey, the wife of the restaurateur
who had recently given Pruett a job. The husband was out of town on
business on that day. Wilma Harvey's nude body, with multiple stab
wounds, was found on her bed with her hands tied behind her back.

After being arrested for that
crime, which was tried as capital murder, Pruett confessed to
robbing and killing Debra McInnis, a coworker at a Kentucky Fried
Chicken in 1975. He received a death sentence for Harvey's murder
and a life sentence for the McInnis' murder.

Man Who Killed Friend's Wife
Is Executed

The New York Times

December
18, 1993

A man who confessed to
raping and killing his best friend's wife nearly nine years ago was
executed in Virginia's electric chair on Thursday.

The man, David Mark Pruett, 44, was pronounced
dead at 11:11 P.M. at the Greensville Correctional Center, said
Wayne Brown, the prison's operations officer. The execution took
place less than six hours after the United States Supreme Court,
without comment, unanimously rejected Mr. Pruett's final appeal.

Mr. Pruett was convicted in 1986 of raping and
stabbing Wilma Harvey, 35, in her Virginia Beach home on Feb. 12,
1985, while her husband, Richard, was away on business. Mrs.
Harvey's body was found on her bed with her hands tied behind her
back.

Mr. Harvey had given Mr. Pruett a job as a cook
at the restaurant he managed.

When he confessed to killing Mrs. Harvey, Mr.
Pruett told investigators that he had also killed Deborah McInnis, a
co-worker at a Kentucky Fried Chicken restaurant in Virginia Beach,
in 1975. He was convicted of first-degree murder and robbery in that
case four months after receiving the death sentence for killing Mrs.
Harvey.

In a petition filed with Gov. L. Douglas Wilder,
one of Mr. Pruett's lawyers, Donald Lee, argued that the death
sentence should be commuted to life in prison. He said the jurors
who sentenced Mr. Pruett to be executed never heard about his severe
emotional and psychological problems.

David
Mark Pruett attacks a
Virginia state court
judgment sentencing him
to death. The United
States District Court
for the Eastern District
of Virginia denied his
petition for a writ of
habeas corpus. We affirm.

I.

On
February 12, 1985,
Pruett went to the home
of his friends Richard
and Wilma Harvey.1
Richard Harvey was out
of town, and Pruett
stopped in, ostensibly
to check on Mrs. Harvey.
Pruett chatted with Mrs.
Harvey for several
minutes.

When
the paperboy came to the
door to collect, Mrs.
Harvey paid him from a
grey cashbox. Upon
seeing Mrs. Harvey take
money from the cashbox,
Pruett formed the intent
to rob Mrs. Harvey. Mrs.
Harvey and Pruett
continued to talk until
she said that she needed
to get ready to go to
church. Pruett asked for
permission to use the
bathroom.

While
in the bathroom, Pruett
decided that he "wanted
some sex" and "told
himself 'well go do it.'
" He went upstairs and
told Mrs. Harvey that he
"wanted some sex." At
first Mrs. Harvey
refused, but Pruett drew
a knife that he had
brought with him and
forced her to submit.

After
he raped Mrs. Harvey,
Pruett bound her hands
and feet and used a sock
to tie a gag over her
mouth. Pruett then
stabbed Mrs. Harvey
several times and cut
her throat open. The
medical examiner counted
twenty-nine stab wounds
in all, several of which
would have been fatal
alone. The Supreme Court
of Virginia did not
articulate a reason for
the initial stabbing,
but found that Pruett
cut Mrs. Harvey's throat
when she tried to kick
him while he was
stabbing her. See 351
S.E.2d at 13.

After
he killed Mrs. Harvey,
Pruett ransacked the
house looking for money.
He took all the money
that he could find,
including the money in
the grey cashbox. He
then disposed of his
blood-soaked clothes and
the knife. Mrs. Harvey's
body was discovered on
her bed by relatives the
next day.

On
February 14 the police
interviewed Pruett twice.
During the first
interview at 1:00 a.m.,
Pruett admitted visiting
Mrs. Harvey, but denied
any knowledge about the
killing. In response to
a question about whether
he had any idea of who
might want to kill Mrs.
Harvey, Pruett stated,
"I can't understand it.
I, I can't feel that
anybody could." He also
said that he was more
anxious to find the
killer than the police
were and that he would
take a polygraph test.

After
the police discovered
that Pruett's
fingerprints had been
found on the headboard
of Mrs. Harvey's bed and
on her eyeglasses, they
again questioned Pruett.
Pruett confessed to
robbing, raping, and
killing Mrs. Harvey, and
he also confessed to
robbing and killing
Debra McInnis in 1975, a
friend he knew through
working at Kentucky
Fried Chicken.2

Pruett was charged by
indictments with the
capital murder of Mrs.
Harvey during the
commission of, or
subsequent to, rape;
rape of Mrs. Harvey; and
robbery of Mrs. Harvey.
A jury convicted Pruett
on all three charges and
fixed his punishment for
rape at life
imprisonment and for
robbery at 75 years in
prison. The same jury
then heard evidence in
aggravation and
mitigation of the murder
charge and returned a
sentence of death. On
March 26, 1986, the
trial court imposed the
sentences fixed by the
jury.

Pruett sought post-conviction
relief in the Circuit
Court of the City of
Virginia Beach, Virginia
by filing a petition for
a writ of habeas corpus.
On June 14, 1988 the
circuit court dismissed
certain counts in the
petition and ordered an
evidentiary hearing on
the remaining claims.
The evidentiary hearing
was held on October 18
and 19, 1988.

The
circuit court heard
testimony from Dr. Tsao,
the psychiatrist who had
evaluated Pruett; Dr.
Brown, a forensic
psychologist; Mr.
Stallings, the lawyer
who represented Pruett
at trial and on direct
appeal; Dr. Fisher,
another forensic
psychologist; Pruett's
mother and father; Mr.
Phillips, the prosecutor
at Pruett's trial; Mr.
Dougherty, an associate
at Mr. Stallings's firm
who worked on Pruett's
case and trial; Miss
Weise, a nurse and
medical administrator at
the Virginia Beach
Correctional Center; and
Mr. Costigan, the
psychiatric social
worker at VBCC.

The
circuit court entered
findings of fact and
conclusions of law on
March 6, 1989 and
dismissed the petition
in full by final order
of March 27, 1989. On
November 16, 1989, the
Supreme Court of
Virginia refused a
petition for appeal. On
May 14, 1990, the United
States Supreme Court
denied certiorari.
Pruett v. Thompson,
495 U.S. 940 , 110
S.Ct. 2194, 109 L.Ed.2d
522 (1990).

Pruett filed his present
action in the United
States District Court
for the Eastern District
of Virginia on November
29, 1990. The petition
contained a request for
an evidentiary hearing.
On August 19, 1991, the
district court, without
a hearing, entered its
order granting the
respondent's motion to
dismiss the petition.
Pruett v. Thompson, 771
F.Supp. 1428 (E.D.Va.1991)
(mem.). Pruett appealed
the final judgment and
order of the district
court on February 11,
1992.

In
this appeal, Pruett
raises five grounds: (1)
The state trial court
erred in not instructing
the jury on the lesser-included
offense of first degree
murder during the guilt
phase of the trial; (2)
prosecutorial misconduct
infected the trial and
sentencing; (3) the jury
instructions given at
the penalty phase were
inadequate; (4) Pruett
received ineffective
assistance of trial and
appellate counsel; and
(5) the district court
abused its discretion
under 28 U.S.C. 2254 by
failing to grant Pruett
an evidentiary hearing
on his habeas petition,
and specifically, on the
ineffective assistance
of counsel claim. We
will address each of
Pruett's contentions in
turn.

II.

Three
of Pruett's assignments
of error--the trial
court's refusal to grant
Pruett's request to
instruct the jury on the
lesser-included offense
of first degree murder,
prosecutorial misconduct
at trial and at
sentencing, and the
adequacy of the penalty
phase instructions--were
procedurally defaulted.
See Pruett v. Thompson,
No. 890908 (Va. Nov. 16,
1989).

In
holding that each of
these claims was
precluded because the
same was not raised
either at trial or on
direct review, the
Virginia Supreme Court
relied on Slayton v.
Parrigan, 215 Va. 27,
205 S.E.2d 680 (1974),
cert. denied,
419 U.S. 1108 , 95
S.Ct. 780, 42 L.Ed.2d
804 (1975), which
holds that non-jurisdictional
challenges to a
conviction may not be
raised in a habeas
corpus proceeding if
they were not asserted
at trial and upon direct
appeal.

At
trial Pruett offered an
instruction on the
lesser-included offense
of first degree murder
excluding the felony-murder
theory of rape,
necessarily proceeding
on the theory that there
had been consensual
intercourse. The trial
court refused the
instruction. There
simply was no evidence
to support the giving of
such an instruction and
Pruett did not appeal
the refusal to the
Virginia Supreme Court.
So that question is
precluded from
consideration here,
having been precluded
from further collateral
consideration in
Virginia, even if raised
collaterally, by the
rule of Slayton v.
Parrigan, 215 Va. 27,
205 S.E.2d 680 (1974),
cert. denied,
419 U.S. 1108 , 95
S.Ct. 780, 42 L.Ed.2d
804 (1975).
Pruett has not exhausted
state remedies. This
subject is mentioned in
more detail in Part III
of this opinion.

On
direct appeal with
respect to prosecutorial
misconduct, Pruett
raised only the question
of the Commonwealth's
Attorney's argument that
Pruett's attorney had
conceded guilt, which
the Virginia Court held
to be without merit. 351
S.E.2d at 10-11; Pruett
v. Thompson, No. 890908,
Petition for Appeal at
30-31 (Va. Nov. 16,
1989).

Pruett does not pursue
that issue in this court
on the same theory,3
however. He now, in his
brief here, Brief of
Appellant at 32-37,
pursues an extensive
list of claimed
prosecutorial misconduct
which was not presented
to the Supreme Court of
Virginia on direct
appeal and so was
procedurally barred from
consideration by the
Virginia courts on
collateral review, even
if there presented, by
the rule of Parrigan.

The
claims on the present
list have been
procedurally defaulted
for failure to exhaust
state remedies, having
been procedurally
defaulted under state
law. While the district
court did consider the
claim with respect to
the Commonwealth's
Attorney's argument that
Pruett's attorney had
admitted guilt and
decided it was without
merit for the reasons
given by the Virginia
Supreme Court, 771
F.Supp. at 1445, the
question was not raised
here and we do not
consider it. The merits
of the other claims of
prosecutorial misconduct
have been procedurally
defaulted as we have set
forth and we do not
directly consider them
also.4

On
direct appeal, the
adequacy of the penalty
phase instructions was
raised only so far as
the trial court had
refused to instruct the
jury that if the jury
could not unanimously
agree on the death
penalty, the court must
impose a life sentence
under Va.Code Ann. §
19.2-264.4(E). The
Virginia Supreme Court
held that this should
not have been the
subject of an
instruction because it
was a procedural matter
and it would have been
an open invitation for
the jury to avoid its
responsibility and to
disagree.

That
question also is not
raised in the same
context before us.
Pruett's claim here is
that "[t]he jury that
sentenced petitioner to
death was never
instructed that it must
consider the mitigating
evidence before imposing
the sentence of death."
Brief of Appellant at
13. The brief continues,
Brief of Appellant at
13-19, in similar vein
that "[i]t is not enough
for the defendant to be
able to present
mitigating evidence; the
sentencer is also
required to consider it"
and the jury must be
"... required to make an
individualized
sentencing determination
based on evidence
submitted at the penalty
phase." Brief of
Appellant at 14.

These
theories were not
presented on direct
appeal and so were held
by the Virginia Court to
have been procedurally
defaulted under Parrigan.
Having been defaulted
under Virginia law, they
are similarly defaulted
in the federal courts
for a failure to exhaust
state remedies. So we do
not directly consider on
the merits the claimed
deficiency in jury
instructions at the
penalty phase.

III.

Pruett argues that we
nonetheless should
address his lesser-included
offense instruction
claim because he is
entitled to relief from
the procedural bar under
either Murray v.
Carrier, 477 U.S. 478,
106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), or Sawyer v.
Whitley, --- U.S. ----,
112 S.Ct. 2514, 120 L.Ed.2d
269 (1992). We first
discuss the relevant
Virginia statutes and
proceedings in this case
in Part A, infra. We
also discuss Pruett's
claimed constitutional
error in that section.
In Part B, infra, we
examine Pruett's claims
under the standards and
the theories he proffers.

A.

To
understand Pruett's
claim, it is important
to understand the
Virginia murder statutes
and the context in which
the claim was raised in
all of the proceedings
below.

Murder, other than
capital murder ... by
any willful, deliberate,
and premeditated killing,
or in the commission of,
or attempt to commit ...
rape ... is murder of
the first degree,
punishable as a Class 2
felony.

Va.Code Ann. § 18.2-32.
Thus, in Virginia three
elements are necessary
to prove capital murder:
(1) a murder; (2) during
the course of another
statutorily specified
crime (here, rape); and
(3) premeditation or
deliberation. If either
the premeditation
element or the
prerequisite crime is
missing, the defendant
is guilty of first
degree murder. If both
are missing, the
defendant is guilty of
second degree murder.
Va.Code § 18.2-32; see
9B Michie's
Jurisprudence of
Virginia and West
Virginia, Homicide, § 20
(1984).

At
trial, Pruett's attorney,
Moody Stallings,
proffered an instruction
on first degree murder
that read, in pertinent
part:

The
defendant is charged
with the crime of first
degree murder. The
Commonwealth must prove
beyond a reasonable
doubt the following
elements of that crime:
(1) That the defendant
killed Wilma Harvey; (2)
That the killing was
malicious; and (3) That
the killing was willful,
deliberate and
premeditated.

Thus,
it is clear that the
instruction was offered
on the theory that the
jury might find that the
rape element of the
capital murder crime was
missing. The trial court
refused to give the
instruction because it
found the jury might
find it confusing. The
issue was not raised on
appeal to the Virginia
Supreme Court.

In
Pruett's state habeas
petition, he asserted
that the denial of the
instruction was improper
because there was
evidence to support his
contention that Mrs.
Harvey was not raped.
State Habeas Petition at
pp 44-50. He also
asserted that it was
ineffective assistance
of appellate counsel for
Stallings to fail to
include the denial of
the instruction in his
assignments of error to
the Virginia Supreme
Court. Amended State
Habeas Petition at p
220. The state habeas
court held that Pruett's
claim was procedurally
barred as to the
instruction and found no
merit in the ineffective
assistance of counsel
claim. Pruett v.
Thompson, No. CL 87-2070
(Cir.Ct. of Va. Beach,
June 14, 1988).

Pruett appealed to the
Virginia Supreme Court.
There, Pruett switched
his reasoning as to why
the denial of the
instruction was error.
He made the assertion
there that he "may not
have had the capacity to
premeditate and
deliberate" and
therefore was entitled
to an instruction on
first degree murder.
Petitioner's Brief at
14-16, (App. 1215-17),
Pruett v. Thompson, No.
890908 (Va. Nov. 16,
1989). Pruett also
argued that Stallings
was ineffective because
he failed to develop
psychiatric evidence
that Pruett lacked the
capacity to premeditate
and deliberate. Id. at
24-25 (App. 1225-26). No
mention was made of the
claim of no rape he had
asserted earlier in the
Circuit Court of the
City of Virginia Beach.

The
Supreme Court of
Virginia held that the
lesser-included offense
claim was procedurally
barred and that there
was no merit to the
ineffective assistance
of counsel claims.
Pruett v. Thompson, No.
890908 (Va. November 16,
1989).

Pruett next turned to
the United States
District Court for the
Eastern District of
Virginia. In his habeas
petition there, he
argued once again that
he was entitled to the
lesser-included offense
instruction on a lack of
premeditation theory.
Petition for Writ of
Habeas Corpus at pp
55-63, Pruett v.
Thompson, 771 F.Supp.
1428 (E.D.Va.1991). He
argued that there was
ample evidence to
support his theory
because

[t]he
frenzied nature of the
killing itself could
have led a reasonable
juror to conclude that
the killing was not
deliberate and
premeditated. In
addition, there is
evidence to support
further mental health
evaluation of the
petitioner on the
question of whether he
was able to, or did in
fact premeditate and
deliberate the killing
of Wilma Harvey.

Id.
at p 60. Pruett further
asserted that his
procedural default of
this claim was the
result of "ineffective
assistance of trial and
appellate counsel." Id.
at p 63. In analyzing
Pruett's claim, the
district court stated:

His
claim before this Court
reflects one first made
in state court on
collateral appeal--that
the nature of the
killing and the nature
of the petitioner would
have supported finding
that petitioner did not
or could not have
premeditated and
deliberated over the
killing.

It is
not surprising that the
Virginia Supreme Court
found this entire claim
procedurally defaulted
under Parrigan. Although
the ineffective
assistance of counsel
claim may have served as
an allegation of cause
and prejudice for
failure to raise the "no
rape or force" argument
on direct appeal,
petitioner has defaulted
on the current [lack of
premeditation claim]
because it was not even
raised in the state
habeas petition.

771
F.Supp. at 1443. The
district court went on,
however, to analyze
Pruett's claim under the
actual innocence
exception to the
procedural default rules
and found no merit in
Pruett's contentions.

Pruett now argues in
this court that the
lesser-included offense
instruction should have
been given on both of
his theories: that there
was no rape and that
there was no
premeditation. Brief of
Appellant at 19. Pruett
relies on statements
from his confession to
show that he lacked
premeditation, and he
relies on medical
evidence to support his
theory that there was no
rape. He also argues
that it was ineffective
assistance of counsel
for Stallings to fail to
raise this ground in the
direct appeal to the
Virginia Supreme Court.
Brief of Appellant at
22.

Any
superficial arguability
of this claim, however,
is only that. As
discussed previously,
Pruett theoretically
could have been guilty
of first degree murder
if the jury had found
that he had killed Mrs.
Harvey with deliberation
and premeditation but
that he had not killed
her during the
commission of a rape.
Further, Pruett could
have been guilty of
first degree murder if
the jury had found a
rape and a murder, but
no premeditation. This
is because under
Virginia law the offense
of first degree murder
during the course of a
rape does not require
premeditation or intent,
but it does require
malice. Wooden v.
Commonwealth, 222 Va.
758, 284 S.E.2d 811, 814
(1981). Malice may be
inferred, however, from
the rape. See Wooden,
284 S.E.2d at 814.

Pruett argues that the
jury should have been
instructed on first
degree murder because
the evidence showed that
he committed a serious
offense, the rape and
murder of Mrs. Harvey,
but did not show
evidence of
premeditation. The trial
court's failure to
instruct the jury on
first degree murder, he
argues, gave the jury
two choices: acquit him
or convict him of
capital murder. Because
the evidence showed he
committed a serious
offense, Pruett submits
that they chose to
convict him.

This
argument is very deftly
made, taking advantage
of the fact that the
Virginia Supreme Court
did not, on direct
review, explicitly find
the premeditation
element. The argument
goes that this is a case
under Beck v. Alabama,
447 U.S. 625, 100 S.Ct.
2382, 65 L.Ed.2d 392
(1980), but the argument
omits that lack of
premeditation and
deliberation was not
argued in the Virginia
Supreme Court.

B.

A
closer look reveals the
weakness in Pruett's
argument which ignores
the proceedings in this
case. Because some of
Pruett's claims are
procedurally defaulted
for one or more reasons,
see Part II, supra,
there are only two
instances in which we
should review Pruett's
claim: if he can show
that there was cause for
and prejudice from the
procedural default of
his claim, see Murray v.
Carrier, 477 U.S. 478,
106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), or that he
is entitled to review
because the failure to
give the instruction was
a constitutional
violation that resulted
in his conviction for
capital murder when he
is "actually innocent"
of the crime for which
the death penalty was
imposed, see Sawyer v.
Whitley, --- U.S. ----,
112 S.Ct. 2514, 120 L.Ed.2d
269 (1992). In an
abundance of caution, we
will also review his
lesser-included offense
claim under both the
lack of rape and lack of
premeditation theories.

Ineffective Assistance
of Counsel

Pruett argues that he is
entitled to review of
his lesser-included
offense instruction
claim because he claims
his attorney made a
mistake in failing to
appeal the trial court's
decision on the
instruction which was of
such magnitude as to
constitute ineffective
assistance of counsel
within the meaning of
Strickland v.
Washington, 466 U.S.
668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984),
which meets the "cause
and prejudice" standard
of Murray v. Carrier.

It is
important to remember
that, despite all of
Pruett's attempts to
argue the merits of his
Beck claim on the
premeditation ground,
the instruction denied
and from which no appeal
was taken was premised
on the lack of the rape
element, not lack of the
premeditation element.
However, we also will
examine Pruett's claim
as one that Stallings
should have discovered
and argued the
premeditation ground.

Under
the Strickland v.
Washington standard, to
prove ineffective
assistance of counsel
Pruett must show that
Stallings's performance
was deficient and that
Stallings's errors were
"so serious as to
deprive [Pruett] of a
fair trial." 466 U.S. at
687, 104 S.Ct. at 2064.
An appellate court's
review of "counsel's
performance must be
highly deferential," 466
U.S. at 689, 104 S.Ct.
at 2065, and the goal of
judicial review "is not
to grade counsel's
performance," 466 U.S.
at 697, 104 S.Ct. at
2069. Rather, we must
decide whether
Stallings's performance
"fell below an objective
standard of
reasonableness," 466
U.S. at 688, 104 S.Ct.
at 2064, giving proper
weight to whether his
decisions reflected a "sound
trial strategy," 466
U.S. at 689, 104 S.Ct.
at 2065.

Failure to Appeal the
Refused Lack of Rape
Instruction

A
lawyer's performance is
entitled to a strong
presumption of
reasonableness. Evans v.
Thompson, 881 F.2d 117,
124 (4th Cir.1989), cert.
denied,
497 U.S. 1010 ,
110 S.Ct. 3255, 111 L.Ed.2d
764 (1990). In
deciding which issues to
raise on appeal,
Stallings is entitled to
a presumption that he
decided which issues
were most likely to
afford relief on appeal.
A decision with respect
to an appeal is entitled
to the same presumption
that protects sound
trial strategy. See 881
F.2d at 124. Stallings
felt that his best
chance on appeal was to
raise a question about
Pruett's mental
condition and to appeal
the trial court's denial
of his request for a
second psychiatrist.

Further, Stallings was
no doubt aware of the
Virginia cases which
hold that a capital
murder defendant is not
entitled to an
instruction on first
degree murder when there
is no evidence to
support it. See, e.g.,
Briley v. Commonwealth,
221 Va. 532, 273 S.E.2d
48 (1980), cert. denied,
451 U.S. 1031 ,
101 S.Ct. 3022, 69 L.Ed.2d
400 (1981).

Here,
the record is completely
devoid of any evidence
to support the
contention that Mrs.
Harvey was not raped.
Pruett relies on a small
part of his confession
that he says supports
his claim that he and
Mrs. Harvey engaged in
consensual intercourse.
That portion of the
confession reads:

[Pruett]:
I told Wilma, she said
she had to go get ready
to go and I went to the
bathroom and the next
thing I knew I was up in
her bathroom. I said
that I was, I wanted
some sex. I had some sex
with her and then I
killed her.

This
answer was given right
after Pruett admitted
that he was the
perpetrator and was
explaining in a broad
way what occurred at the
Harveys' home. However,
when asked to give the
police more detail,
Pruett stated
unequivocally that he
raped Mrs. Harvey.

[Q]:
Allright. You said you
did have sex with her?

[A]:
Yes.

[Q]:
Before or after you
stabbed her?

[A]:
Before.

[Q]:
Okay. Before or after
you tied her up?

[A]:
Before.

[Q]:
Okay. Was the sex
voluntary?

[A]:
No.

[Q]:
You had to force her?

[A]:
Yea.

[Q]:
How did you have to
force her?

[A]:
By asking her. I mean,
ah, with the knife.

[Q]: With the knife.

[A]: Yea. So then she
said no problem.

[Q]:
How did you, how did you
force her with the knife?

[A]:
I don't know.

[Q]:
Did you threaten her?
Did you, ah ...

[A]:
I said, well, yea, I
said I want some sex. I
want some sex and, ah,
then she said, okay and
then I put the knife
down.

[Q]:
Okay. So you didn't have
the knife when you were
having sex with her then?

[A]:
No.

Read
in the best possible
light for Pruett, his
argument boils down to
an assertion that Mrs.
Harvey consented to sex
after he asked her at
knife point. Hardly
consensual intercourse
by any standard. The
most favorable reading
of Pruett's confession
still provides nothing
other than overwhelming
and uncontradicted
evidence that Mrs.
Harvey was raped.

We
find no merit in
Pruett's contention that
his lawyer was
ineffective because he
failed to appeal the
denial of a first degree
murder instruction on
the basis that he could
have committed a
premeditated killing of
Mrs. Harvey without
raping her. There simply
was no evidence to
support such an
instruction.

There
was no error,
constitutional or
otherwise, in the trial
judge's refusal to give
the instruction, so it
is not ineffective
assistance of counsel
for an attorney not to
appeal a patently
correct ruling. We also
note that the jury was
instructed on the
elements of rape,
specifically found
Pruett guilty of rape,
and sentenced him to a
seventy-five year prison
term for that offense.

Failure to Offer a
Lesser-Included Offense
on Deliberation and
Premeditation
Instruction

Pruett makes the oblique
assertion in his brief
that Stallings's failure
to ask for a lesser-included
offense instruction on
the basis of lack of
premeditation
constituted ineffective
assistance of counsel.
This is the first time
Pruett has raised such a
claim.5

We
note at the outset that
this claim of Pruett
should be denied because
he failed to exhaust it
in the Virginia courts.
See 28 U.S.C. 2254(b);
Rose v. Lundy, 455 U.S.
509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982). New
theories and claims may
not be inserted into a
case every time it
reaches a new court. See
Crowell v. Zahradnick,
571 F.2d 1257 (4th
Cir.1977), cert. denied,
439 U.S. 956 , 99
S.Ct. 357, 58 L.Ed.2d
348 (1978).

The
alleged constitutional
error was never raised
or considered by any
court before this one,
and we hold that the
claim should be
dismissed for failure to
exhaust. See Crowell,
571 F.2d at 1258.
Further, we note that if
Pruett's claim had been
presented to the
Virginia courts on
collateral review, it
would have been barred
under the rule of
Slayton v. Parrigan, 215
Va. 27, 205 S.E.2d 680
(1974), cert. denied,
419 U.S. 1108 , 95
S.Ct. 780, 42 L.Ed.2d
804 (1975),
because he did not raise
this claim on direct
appeal. Therefore, the
very claim on which
Pruett relies to
establish cause and
prejudice for the
procedural default of
his claim with respect
to lack of premeditation
under Beck is itself
subject to dismissal for
failure to exhaust and,
as well, would be
procedurally defaulted
under state law.

Murray v. Carrier, 477
U.S. 478, 489, 106 S.Ct.
2639, 2646, 91 L.Ed.2d
397 (1986), holds that
"Rose v. Lundy, 455 U.S.
509, 518 [102 S.Ct.
1198, 1203, 71 L.Ed.2d
379] (1982), generally
requires that a claim of
ineffective assistance
be presented to the
state court as an
independent claim before
it may be used to
establish cause for a
procedural default." We
follow that rule in this
case. There has been no
presentation to the
Virginia courts of this
ineffective assistance
of counsel claim, so it
may not be used to
establish cause for a
procedural default in
this case.

While
the question is not
before us, it is not out
of place to observe that
even had the claim not
been procedurally
defaulted, it would have
required examination of
Stallings's tactics, in
view of the overwhelming
evidence of guilt, in
conducting the trial
principally as an appeal
to the jury in the
sentencing phase. The
record does not suggest
any merit to that claim.

The Actual Innocence
Claim

A
petitioner who has
failed to meet the
Murray v. Carrier cause
and prejudice standard
may still have his
defaulted habeas claims
reviewed if he can show
that he is actually
innocent of the crime
for which the death
penalty was imposed.
Sawyer v. Whitley, ---
U.S. ----, 112 S.Ct.
2514, 120 L.Ed.2d 269
(1992). "[T]o show
'actual innocence' one
must show by clear and
convincing evidence that
but for a constitutional
error, no reasonable
juror would have found
the petitioner eligible
for the death penalty
under the applicable
state law." Sawyer, ---
U.S. at ----, 112 S.Ct.
at 2515.

The Offered Lesser-Included
Offense Instruction
Which Omitted Any
Reference To Rape

First,
we have an
insurmountable
difficulty in finding
the requisite
constitutional error. To
require the trial judge
to give the lesser-included
offense instruction as
offered would be simply
inconsistent with both
the indictments and the
facts established by the
record. If Pruett had
received the instruction
he sought, been
convicted under it
instead of the capital
murder statute, but
still found guilty of
rape, as he was, he
would have been guilty
of all of the elements
of capital murder, but
just not convicted of it,
a logical inconsistency
too great to overcome.

Even
assuming for argument
that the trial court
committed constitutional
error by failing to
instruct the jury on the
lesser-included offense
at trial, see Beck v.
Alabama, 447 U.S. 625,
100 S.Ct. 2382, 65 L.Ed.2d
392 (1980); cf. Briley
v. Bass, 742 F.2d 155
(4th Cir.) (stating that
no instruction is
required when there is
no support in the
evidence for the lesser-included
offense), cert. denied,
469 U.S. 893 , 105
S.Ct. 270, 83 L.Ed.2d
206 (1984), the
result would be the same.

We
decide without the
slightest hesitation
that such a claim does
not pass the Sawyer
reasonable juror
standard. Here, there
was abundant evidence
from which even the most
cautious juror could
only have found that
Pruett raped Mrs.
Harvey, not the least of
which is Pruett's
confession to that crime.
Any medical evidence
(seminal fluid in Mrs.
Harvey's vagina and lack
of lacerations and
bruises to Mrs. Harvey's
genitalia) that Pruett
says was consistent with
consensual intercourse
is not only consistent
with rape, it is not
even inconsistent with
the unqualified fact
that consent was
obtained at knifepoint,
not arguably consensual.

We
think it is abundantly
clear that Pruett cannot
show that if the jury
had been given a choice
between capital murder
and first degree murder
on the grounds that
there was no rape, no
reasonable juror would
have chosen capital
murder. Indeed, the jury
separately convicted
Pruett of rape.
Therefore, Pruett is not
actually innocent of the
crime for which the
death penalty was
imposed on this ground.

The Lack of
Premeditation Claim as
Measured Against Sawyer
v. Whitley

We
will also assume
arguendo, although it is
an assumption that
cannot be at all
maintained,6
that the trial judge
should have instructed
the jury on the lesser-included
offense on the grounds
that there was no
premeditation.

Even
when we are overly
generous in constructing
his arguments for him,
Pruett is unable to
convince us that "no
reasonable juror would
have found the
petitioner eligible for
the death penalty."
Sawyer, --- U.S. at
----, 112 S.Ct. at 2515.

Pruett's argument that
he lacked deliberation
or premeditation based
on "the frenzied nature
of the killing," Brief
of Appellant at 19, is
based on what is
admittedly a self-serving
reading of his
confession. That reading
of the confession is
quite strained,
overlooks inherent
conflicts in his story,
and is not supported by
the confession as a
whole.

Even
assuming, however, for
argument, that the
evidence he claims is in
his confession--that he
did not mean to do it,
that he must be crazy
for doing it, that he
did not plan to do it,
and that he did not know
why he did it--is all
uncontroverted by other
portions of his
confession, a reasonable
juror still could infer
premeditation from
Pruett's attempts to
escape detection by
discarding his clothes
and his subterfuge
during his initial
interview with the
police, the viciousness
of the multiple stab
wounds, see Clozza v.
Commonwealth, 228 Va.
124, 321 S.E.2d 273,
279-280 (1984), cert.
denied,
469 U.S. 1230 ,
105 S.Ct. 1233, 84 L.Ed.2d
370 (1985),7
and the fact that he had
the murder weapon with
him in the first place.

Thus,
a reasonable juror could
infer, from Pruett's own
statements, that he took
the knife upstairs to
kill Mrs. Harvey as well
as to force her to have
sex with him. There
simply is no basis for
saying that no
reasonable juror could
infer premeditation from
Pruett's actions, even
taking the facts in the
light most favorable to
him.

Because Pruett has
demonstrated neither
cause and prejudice nor
actual innocence, we
decline to reach the
merits of Pruett's
defaulted Beck claim.

IV.

Pruett also alleges
ineffective assistance
of counsel that entitles
him to have his sentence
and convictions set
aside because of
Stallings's failure to
adequately communicate
with Dr. Tsao, the court-appointed
psychiatrist, failure to
follow up on Tsao's
findings, failure to
develop a guilt-phase
strategy, failure to
develop and present
evidence that Pruett
would not be a
continuing threat to
society if he were
incarcerated for life,
and failure to develop
mitigating evidence8
for the penalty phase of
the trial. After a
review of the record, we
are of opinion that
Pruett did not so
receive ineffective
assistance of counsel.

Pruett's claims really
fall into two categories:
First, that Stallings's
decisions not to argue
that Pruett would not be
a continuing threat if
incarcerated and not to
develop a guilt-phase
strategy based on
consensual sex were
unreasonable, and second,
that there was ample
evidence of
psychological
disturbance which could
have been offered in
mitigation that
Stallings did not
adequately investigate
or present.9
We deal with each of
these contentions in
turn.A.

Pruett's first group of
claims asks us to hold
that Stallings's
strategic decisions were
manifestly unreasonable.
Stallings's testimony at
the plenary hearing
establishes that he did
not pursue the future
dangerousness argument
because of a carefully
considered trial
strategy.

Stallings knew that Dr.
Tsao had found that
Pruett presented a
threat of future
dangerousness to society.
Stallings talked to Tsao
and explored with him
the bases for that
opinion. When he learned
that Tsao would not
change his mind, he
decided not to pursue an
argument that Pruett
would not present a
danger if he were
incarcerated. He
explained his reasoning
on cross-examination as
follows:

[Mr.
Anderson]: There is one
final complaint that you
denied the possibility
of the defendant
adapting well to
incarceration and,
therefore, perhaps not
being a future danger.

Did
you think that the jury
would be more impressed
with evidence of Mr.
Pruett's dangerousness
to the community at
large or whether or not
he would be a danger if
confined in prison?
Which one do you think
the jury would be more
interested in?

[Mr.
Stallings]: We were
talking about community
at large. That was a
real tactical thing we
were playing with. I
wanted to say that David
would never get out of
prison. I was handcuffed
a little bit on that as
to how far the judge
would let me go. These
were all conferences we
had. I don't know if
it's on the record or
not, and the
Commonwealth said if I
opened that door, they
could get into parole
eligibility so I kind of
walked a thin line there
and I think the
Commonwealth got into
dangerousness in their
closing.

I was
trying to present to the
jury the myth that if
they give him life, he
would be in there for
the rest of his life and
he would never get out
and, again, I guess
that's where I was
coming from was my
concern on it. I wanted
to make the jury think
he will never hurt
anyone in society again.
He is going away forever.

Q:
Going back to Doctor
Tsao's evaluation and
when he was asked to
determine whether Mr.
Pruett was a future
danger, did you at the
time think that he
should primarily focus
on his dangerousness
generally or his
dangerousness to other
inmates and people in
the system--community.

A:
That's what I would be
dealing with. Again, I
don't really want to
talk about dangerousness
to the prison community
because the best case
scenario, that's still a
factor.

If
they give him life, I
don't want Tsao getting
up there saying if you
give him life, he won't
hurt anyone else, but he
sure could hurt someone
in prison.

In
light of the
circumstances in which
Stallings made his
decision, we are of
opinion that it was
objectively reasonable
to try to get the jury
to believe that a life
sentence meant
confinement for life.10

Pruett also contends
that Stallings failed to
adequately investigate
the facts of the rape.
The testimony at the
plenary hearing reveals
that Stallings did not
pursue the late claim of
consensual sex because
it was not credible.
Pruett maintained that
he had raped Mrs. Harvey
until sometime a week or
so before his trial.
Pruett made the
assertion of consensual
intercourse while
talking to Stallings and
Dougherty about post-traumatic
stress syndrome and
about the fact that
Pruett's killing of Mrs.
Harvey did not match
other killings he
claimed to have
committed in Vietnam.11

Pruett was told that the
main difference between
his killing of Mrs.
Harvey and the ones he
claimed to have
committed in Vietnam was
that he raped Mrs.
Harvey, while the
Vietnam killings
allegedly occurred after
consensual sex. Pruett
immediately recanted
that he raped Mrs.
Harvey and said that she
had engaged in
consensual sex with him.
Dougherty testified that
"I felt at that point
that there was no
reality in that. I mean,
he changed [his story]
to suit our needs--the
defense's needs."

Pruett would have us
hold that it is
objectively unreasonable
for a lawyer to fail to
further investigate a
claim that is based on
underlying facts the
lawyer with good cause
believes to be
incredible. This we
decline to do. We also
note that this decision
by Stallings and
Dougherty is supported
by the record. Even
Pruett's confession has
no hint of consensual
intercourse, as we have
previously pointed out.

Having found that
Stallings's decisions
not to pursue the future-dangerousness-in-prison
argument and the claim
of consensual sex were
objectively reasonable,
we find no defect in
Stallings's performance
in these two respects
and do not reach the
prejudice issue. We next
turn to the group of
Pruett's ineffective
assistance of counsel
claims relating to
Stallings's
investigation and
presentation of a
psychiatric defense.

B.

Pruett argues that
Stallings failed to
investigate or present
psychiatric evidence
that could have been
offered in mitigation of
Pruett's crime. He
argues that Stallings
did not adequately
follow up on Dr. Tsao's
findings, did not
consult with additional
experts, and failed to
develop other evidence
of mental illness,
developmental problems,
organic brain damage,
and post-traumatic
stress disorder. After a
review of the record, we
find that Stallings's
actions with respect to
investigating a possible
psychiatric defense were
objectively reasonable.

At
the outset, we note that
much of Pruett's fault-finding
lies with Tsao. However,
Pruett asserts a claim
of ineffective
assistance of counsel,
which requires us to
review the lawyer's
conduct.12

We
also note that in the
usual case, this court
is presented with
conflicting psychiatric
or psychological
testimony. A defendant
who appears to be
suffering from some sort
of mental illness,
abnormality, or
condition is usually
evaluated by a state
psychiatrist whose
conclusions are disputed
by the defense's
psychiatrist or
psychologist. Here, we
do not have that
dispute. Stallings
requested a psychiatric
evaluation of his client
and recommended a
psychiatrist. The
circuit court judge
ordered Stallings's
chosen psychiatrist, Dr.
Tsao, to conduct the
evaluation. Stallings
chose Tsao because he
had consulted with other
defense attorneys and
had been told that Tsao
was defense oriented.

Stallings's testimony
reveals that he spoke to
Tsao several times in an
attempt to find evidence
of mitigation. He
recounted what he termed
his "last call of
desperation" to Tsao
imploring him to find
something he could use
in mitigation. Stallings
also asked the court to
appoint another
psychiatrist to make an
evaluation on the basis
that Tsao was not an
expert in post-traumatic
stress disorder.

The
court denied the request.
Stallings testified that
he felt he was clear in
telling Tsao the purpose
of the evaluation, and
Stallings also testified
that he had no reason to
believe that Tsao had
not performed as he was
asked. Stallings agreed
that he was satisfied
with the way Tsao had
conducted his evaluation
and had problems only
with the fact that
Tsao's conclusions did
not fully suit the
defense's requirement.

Despite all of
Stallings's efforts,
Pruett would have us
find that Stallings
should have known that
Pruett suffered from
mental illness, organic
brain damage,
developmental problems,
and post-traumatic
stress disorder, and
that Tsao's evaluation
was flawed. We cannot
reach that result. An
attorney is not required
to be so expert in
psychiatry. Stallings
did the objectively
reasonable thing when
appointed to Pruett's
case: he asked other
members of the defense
bar to recommend a
psychiatrist who would
begin his evaluation on
Pruett's side. Stallings
spoke with Tsao often
and tried to persuade
him to change his
evaluation.

He
also provided Tsao with
much of the information
that Pruett now claims
would have made all the
difference in his
psychiatric evaluation,
including the fact that
Pruett had two siblings
with organic brain
damage.13
We simply do not find
any defect in
Stallings's performance,
and we therefore find
that Pruett received
effective assistance of
counsel within the
meaning of Strickland.

C.

Pruett's last claim is
that the district court
erred in denying him an
evidentiary hearing on
his ineffective
assistance of counsel
claims. He claims that
evidence should have
been taken in the state
habeas proceeding to
determine seven
ineffective assistance
of counsel claims he now
asserts. We find no
merit in this contention.

Pruett complains about
three principal aspects
of trial counsel's
performance: the failure
to request the
appointment of a
forensic pathologist to
testify that the absence
of lacerations and
bruises around Mrs.
Harvey's genitalia
diminished the
likelihood of forcible
rape, the failure to
inquire on voir dire as
to whether jurors could
consider finding the
defendant guilty of a
lesser-included offense
of first degree murder
if they were presented
with evidence raising a
reasonable doubt as to
the defendant's ability
to premeditate the claim,
and the failure to offer
a first degree murder
instruction based on a
lack of premeditation.

We
note that Pruett's claim
about trial counsel's
performance with respect
to the appointment of a
pathologist was not
raised in his federal
habeas petition and his
claim should therefore
be dismissed. A hearing
could not remedy this
procedural default and
we ordinarily do not
consider claims not
raised in the district
court. Pruett's claim is
so obviously without
merit, however, even if
properly before us, that
we have no hesitation in
stating that it does not
take a forensic
pathologist to conclude
that absence of
lacerations or bruises
around a rape victim's
genitalia is evidence
consistent with
consensual intercourse.
So the failure to
request the appointment
of such a witness does
not amount to a showing
of an incompetent
attorney.

Pruett's next claim is
not procedurally
defaulted, but it is
equally without merit.
The failure of trial
counsel to inquire as to
whether the jurors could
consider finding the
defendant guilty of the
lesser-included offense
of first degree murder
as outlined above is no
more than a question as
to whether or not the
jurors could do their
duty if instructed and
is not even evidence of
incompetent
representation.

Stallings's performance
in not offering a first
degree murder
instruction on a lack of
premeditation theory is
an issue we thoroughly
discussed in Part III(B),
supra, and we found to
be without merit.

Three
other matters which
Pruett now claims
demanded a hearing are
his claims that his
appellate counsel was
ineffective.
Specifically, Pruett
faults Stallings for
failing to appeal the
trial court's refusal to
give the first degree
murder charge based on
the lack of rape theory,
failing to appeal the
trial court's ruling on
the admissibility of the
victim impact evidence,
and failing to assign as
error several instances
of claimed prosecutorial
misconduct.

We
note at the outset that
Pruett's claims of
ineffective assistance
of counsel on these
issues are an attempt to
have the merits of his
underlying procedurally
defaulted claims
determined. Pruett hopes
to establish cause and
prejudice for his
defaults under the
meaning of Murray v.
Carrier, supra. We find
that he has not made his
case for ineffective
assistance of counsel or
proved his need for a
hearing.

Pruett's first claim
about Stallings's
failure to appeal the
lesser-included offense
instruction also was
discussed in Part III(B),
supra, and we need not
repeat that discussion
here.

Pruett's second claim is
that his appellate
counsel was ineffective
for failing to appeal
the introduction of (1)
Mr. Harvey's testimony
at the guilt phase of
trial; and (2) Mr.
McInnis's testimony in
the penalty phase. As to
the claim regarding the
failure to appeal the
introduction of Mr.
Harvey's testimony at
the guilt phase, this
claim has not been
exhausted and should be
dismissed. See 28 U.S.C.
2254(b). Although Pruett
pleaded this particular
claim of ineffective
assistance of appellate
counsel in his amended
state habeas petition,
see Amended State Habeas
Petition at pp 214-25,
he defaulted on this
claim when he failed to
argue it to the Virginia
Supreme Court on habeas
review.14

Instead, in arguing why
the state habeas trial
court improperly applied
the Parrigan rule to his
claim relating to Mr.
Harvey's testimony,
Pruett stated in his
Petition for Appeal that
Mr. Harvey's testimony
was objected to at trial,
and, incorrectly, that
"[t]hese claims [the
Harvey and McInnis
testimony] were likewise
raised and adjudicated
on direct appeal to this
Court." Pruett v.
Thompson, No. 890908,
Petition for Appeal at 7
(Va. Nov. 16, 1989). In
fact, Pruett did not
argue the claims
relating to Mr. Harvey's
testimony on direct
appeal. Whether by
inadvertence or design,
the failure to present
the matter of Mr.
Harvey's testimony to
the Virginia Supreme
Court has not been
overcome. See Coleman v.
Thompson, --- U.S. ----,
----, 111 S.Ct. 2546,
2559, 115 L.Ed.2d 640
(1991).

An
evidentiary hearing in
the district court
cannot cure the problem,
and we note that the
merits of the underlying
claim itself are also
procedurally barred. The
claims relating to Mr.
Harvey's testimony were
never presented to the
Virginia Supreme Court
and are therefore
defaulted under the
Parrigan rule, as the
state habeas trial court
found. Pruett v.
Thompson, No. CL 87-2070
(Cir.Ct. of Va. Beach,
June 14, 1988).

As
for the second half of
Pruett's claim, which
relates to Stallings's
failure to appeal issues
related to Mr. McInnis's
testimony in the penalty
phase of trial, the
claim is patently
without merit as several
issues related to Mr.
McInnis's testimony were,
in fact, appealed to the
Virginia Supreme Court
and found to be without
merit. Pruett v.
Commonwealth, 232 Va.
266, 351 S.E.2d 1, 11-12
(1986). And we note, in
passing, our agreement
with the reasoning of
the Virginia Supreme
Court on the merits. See
also Payne v. Tennessee,
--- U.S. ----, 111 S.Ct.
2597, 115 L.Ed.2d 720
(1991) (holding that the
Eighth Amendment erects
no per se bar to the
admission of victim
impact evidence in the
penalty phase of a
capital murder trial).
Stallings's conduct in
appealing issues related
to McInnis's testimony
cannot now support a
finding that Stallings
was ineffective for
failure to appeal these
same issues. An
evidentiary hearing
could not convince us
otherwise.

Pruett next argues that
his appellate counsel
was ineffective for
failing to appeal
several instances of
alleged prosecutorial
misconduct at the guilt
and penalty phases of
trial. At the guilt
phase, Pruett complains
about the prosecutor's
offering evidence of Mrs.
Harvey's character,
arguing that Stallings
conceded guilt in voir
dire, stating that he
would offer evidence in
aggravation at the
penalty phase, and
telling the jury in
closing argument that it
should show Pruett the
same compassion that he
had shown Mrs. Harvey.

At
the penalty phase,
Pruett complains about
the prosecutor's stating
that a death sentence
would be appropriate
based solely on the
guilt-phase verdict,
stating that the
Commonwealth could not
conceive of a more
appropriate case for the
death penalty, arguing
to the jury that it did
not have to consider
mitigating evidence,
arguing that Mrs. Harvey
did not have due process
or an alternative to the
death penalty, offering
Mr. McInnis's testimony
about the condition in
which he found his wife
and the crime scene, and
arguing the heinousness
of the McInnis murder.
All of these acts, he
argues, constituted
prosecutorial misconduct,
and his appellate
counsel was ineffective
for failing to raise
them on direct appeal.

Two
of the claims--the
prosecutor's arguing
that Stallings had
conceded guilt and the
offering of Mr.
McInnis's testimony--were
raised on direct appeal
to the Virginia Supreme
Court and fully
litigated on the merits.
We agree with the
Virginia Supreme Court
on the merits, 351
S.E.2d at 10-12, and
fail to see how claims
that were raised on
direct appeal can now
form the basis of an
ineffective assistance
of appellate counsel
claim.

Further, the claim that
the prosecutor committed
misconduct when he
argued the heinousness
of the McInnis murder to
the jury also is without
merit and cannot support
a finding of ineffective
assistance of counsel
for failing to raise it
on appeal. The admission
of testimony about the
McInnis murder was
proper, see Payne, supra,
and the prosecutor did
not commit misconduct by
arguing properly
admitted evidence to the
jury. Surely if there is
no prosecutorial
misconduct, there can be
no ineffective
assistance of appellate
counsel for failure to
assign as error on
appeal the proper
conduct of the
prosecutor.

The
district court found
that the merits of all
of the remaining
allegations of
prosecutorial misconduct
were defaulted except
perhaps the prosecutor's
offering some evidence
relating to the
character of Mrs.
Harvey. See note 4,
supra. Although the
claim that Stallings's
failure to assign as
error in the direct
criminal appeal this
list of alleged items of
prosecutorial misconduct
was ineffective
representation was
presented to the state
habeas trial court, it
was not pursued in the
state Supreme Court, so
the district court held
correctly that the
subject was procedurally
defaulted. The matter
has not been presented
to the state Supreme
Court and is precluded
from consideration here
by Murray v. Carrier,
477 U.S. 478, 489, 106
S.Ct. 2639, 2646, 91
L.Ed.2d 397 (1986).

Pruett's final claim of
ineffective assistance
of counsel relates to
the penalty phase
instructions at trial.15
Pruett appears to argue
that Stallings should
have requested an
instruction that
informed the jurors that
they were required to
consider mitigating
evidence.16

The
state habeas court
dismissed the claim as
meritless without a
hearing. Pruett v.
Thompson, No. CL 87-2070
(Cir.Ct. of Va. Beach,
June 14, 1988). The
state habeas court held
that the merits of the
instruction claim as
related to mitigating
evidence were barred
from consideration under
the Parrigan procedural
default rule. Pruett v.
Thompson, No. CL 87-2070
(Cir.Ct. of Va. Beach,
June 14, 1988).

The
district court found
that consideration of
the merits of the
instruction claim as
related to mitigating
evidence was
procedurally defaulted,
and, alternatively, the
claim was without merit.
771 F.Supp. at 1444. The
district court further
found no merit to the
ineffective assistance
of counsel claim because
the penalty phase
instructions were proper.
771 F.Supp. at 1449.

We
agree with the reasoning
of the district court.
The merits of the
instruction claim were
defaulted under Parrigan
and we ordinarily would
not address them.
However, the ineffective
assistance of counsel
claim is before us. We
are of opinion that it
is not ineffective
assistance of counsel to
fail to offer additional
or different
instructions if the ones
given by the trial court
are proper. This
question is easily
resolved here because
the instruction given
was proper. See Briley
v. Bass, 750 F.2d 1238,
1242-44 (4th Cir.1984) (approving
almost identical
instructions and finding
that "all the evidence"
language informs the
jurors that they must
consider mitigating
evidence), cert. denied,
470 U.S. 1088 ,
105 S.Ct. 1855, 85 L.Ed.2d
152 (1985).

We
therefore are of opinion
that Pruett is not
entitled to a hearing
because both his
ineffective assistance
counsel claims and the
underlying claims are
without merit. In
addition, we note that
Pruett has not alleged
any additional facts
that would entitle him
to a new evidentiary
hearing. See Poyner v.
Murray, 964 F.2d 1404,
1414 (4th Cir.), cert.
denied, --- U.S. ----,
113 S.Ct. 419, 121 L.Ed.2d
342 (1992) (stating that
a habeas petitioner is
entitled to an
evidentiary hearing in
federal district court
only if "(1) he alleges
additional facts that,
if true, would entitle
him to relief; and (2)
he is able to establish
any of the six factors
set out by the Court in
Townsend v. Sain, [372
U.S. 293, 83 S.Ct. 745,
9 L.Ed.2d 770 (1963) ],
or the related factors
set out in 28 U.S.C.
2254(d)." (citations
omitted)).

Pruett points to the
fact that he was not
allowed to question Tsao
about conflicts between
his habeas hearing
testimony and his
earlier statements to
Pruett's habeas counsel,
apparently arguing that
the state hearing was
not full and fair or
complete. A review of
the record reveals that
this contention is
without merit and not
supported by the facts.
See 2 Hab.Tr. at 34-36.
We therefore find no
merit in Pruett's
contentions, and he has
not, in any event, made
the required showing
that would entitle him
to a hearing.17
We therefore hold that
the district court did
not abuse its discretion
under 28 U.S.C. 2254 by
failing to provide
Pruett with an
evidentiary hearing.

V.

We
should add that the
length of this opinion
is due, in no little
extent, to the numerous
points raised in
Pruett's brief, many by
allusion and indirection.
We are mindful of our
obligation to discuss
all of the contentions
in cases such as this
which have arguable
merit, and we have done
so.

We
are further of opinion
that Pruett had a fair
trial in every sense of
the words, and as well
he has had extensive
appellate and collateral
review of his conviction.

2 Pruett was
convicted of the murder
of Mrs. McInnis in a
separate nonjury trial,
for which he received a
life sentence under the
noncapital murder
statute, Va.Code Ann. §
18.2-32. The McInnis
murder was also a brutal
stabbing, with the
motive apparently being
robbery

3 Even if Pruett's
mere allusion in his
brief to p 96 of his
federal habeas petition
is a sufficient raising
of the question, we deny
the claim as without
merit for the same
reasons given by the
Virginia Supreme Court,
351 S.E.2d at 10-11, and
the district court, 771
F.Supp. at 1445.
Paragraph 96 states in
full: "Defense counsel
also objected to the
Commonwealth arguing
that he conceded guilt
at voir dire. (App.
1391). This, too, was
overruled. (App. 1393)."

4 The district court
apparently held, and, if
so, correctly, and
Pruett concedes in his
brief that the district
court so held, Brief of
Appellant at 33, that
the prosecutorial
misconduct claim
relating to the offering
of evidence relating to
Mrs. Harvey's character
was procedurally
defaulted. 771 F.Supp.
at 1445

Even
if the opinion of the
district court is
construed as reaching
whatever merits of the
question the petition
for appeal to the state
Supreme Court presented,
it correctly decided
that Payne v. Tennessee,
--- U.S. ----, 111 S.Ct.
2597, 115 L.Ed.2d 720
(1991), had overruled
the cases of Booth v.
Maryland, 482 U.S. 496,
107 S.Ct. 2529, 96 L.Ed.2d
440 (1987), and South
Carolina v. Gathers, 490
U.S. 805, 109 S.Ct.
2207, 104 L.Ed.2d 876
(1989), which were the
only cases depended upon
by Pruett in his appeal
in the state habeas
case. No consideration
of any of the papers in
the present case can
lead to the conclusion
that the matter of
prosecutorial error in
the introduction of
evidence relative to the
character of Mrs. Harvey
was presented to the
Virginia Supreme Court
in any context other
than as a penalty phase
error. See Booth, supra;
Gathers, supra.

5 Before the
Virginia Supreme Court
on habeas review Pruett
argued that if Stallings
had properly
investigated his
psychiatric state, he
would have discovered
that Pruett lacked the
mental capacity
necessary to form
premeditation. As we
conclude at Part IV,
infra, Stallings's
investigation was
objectively reasonable

7 The Clozza case
involved the brutal rape
and murder of a thirteen
year old girl. In
addressing Clozza's
argument that he lacked
premeditation for the
murder, the Supreme
Court of Virginia
decided that in
determining
premeditation, "the jury
properly may consider
the brutality of the
attack, whether more
than one blow was struck,
the disparity in size
and strength between the
accused and the victim,
and the defendant's
efforts to avoid
detection." 321 S.E.2d
at 279

8 Specifically,
Pruett claims trial
counsel placed undue
emphasis on the impact
of a death sentence on
Pruett's family; failed
to investigate possible
avenues of mitigation;
failed to develop other
evidence of mental
illness, developmental
problems, organic brain
damage, and
post-traumatic stress
disorder; and failed to
present some evidence
that trial counsel had
found during his
investigations

9 Pruett's claims
that Stallings
improperly attempted to
persuade the jury to
identify with Pruett's
parents and that
Stallings did not offer
every possible piece of
mitigating evidence do
not merit lengthy
discussion. These
decisions are ones of
trial strategy, and
attorneys have great
latitude on where they
can focus the jury's
attention and what sort
of mitigating evidence
they can choose not to
introduce. See Clozza v.
Murray, 913 F.2d 1092
(4th Cir.1990), cert.
denied, --- U.S. ----,
111 S.Ct. 1123, 113
L.Ed.2d 231 (1991).
Stallings's decisions in
those respects were
quite within the bounds
of effective
representation

10 Stallings
successfully kept the
matter of parole out of
the case, and as well
secured an instruction
by the court for the
jury not to consider
Pruett's dangerousness
if imprisoned

11 Pruett claimed at
one time that he had
killed eight women in
Vietnam after having
consensual sex with them.
These claimed events
ostensibly were the
initial stressor that
caused Pruett to suffer
from post-traumatic
stress disorder. See
generally American
Psychiatric Ass'n, DSM-III-R
§ 309.89 (3d ed. 1987).
Pruett does not press
here his claim that he
committed these killings,
which were not supported
by any available
military records

12 In Waye v.
Murray, 884 F.2d 765,
766-67 (4th Cir.) (per
curiam), cert. denied,
492 U.S. 936 , 110
S.Ct. 29, 106 L.Ed.2d
634 (1989), we
rejected the notion that
there is either a
procedural or
constitutional rule of
ineffective assistance
of an expert witness,
rather than ineffective
assistance of counsel.
Rather, the rule is that
the due process clause
requires that the State
appoint a competent
expert witness to
evaluate the defendant's
mental state when it is
in serious question and
the defendant is
indigent. Ake v.
Oklahoma, 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d
53 (1985). However, Ake
requires only a
competent expert. Pruett
does not claim that Tsao
was incompetent; he
claims only that there
were better qualified
psychiatrists available.
See 771 F.Supp. at 1442.
We will not graft the
Strickland effective
assistance of counsel
test onto the
performance of an expert
witness in these
circumstances. In Waye
we stated:

It
will nearly always be
possible in cases
involving the basic
human emotions to find
one expert witness who
disagrees with another....
To inaugurate a
constitutional or
procedural rule of an
ineffective expert
witness in lieu of the
constitutional standard
of an ineffective
attorney, we think, is
going further than the
federal procedural
demands of a fair trial
and the constitution
require. 884 F.2d at
767.

13 We agree with the
district court that
Pruett "has never argued
that Dr. Tsao was not
generally qualified to
evaluate him. He claims
only that there were
better qualified
psychiatrists available,
or that other
psychiatrists would have
rendered opinions more
helpful to his
defense...." 771 F.Supp.
at 1442

14 Claims of
ineffective assistance
of counsel that a
petitioner proffers to
establish cause and
prejudice under Murray
are themselves subject
to the procedural
default and exhaustion
rules. Murray, 477 U.S.
at 488-89, 106 S.Ct. at
2645-46

15 Stallings did
request that the court
instruct the jury that
the court would sentence
Pruett if the jury could
not reach a unanimous
sentencing verdict. The
trial court refused the
proffered instructions.
Stallings raised that
claim on appeal to the
Virginia Supreme Court.
The state habeas court
found that that part of
Pruett's habeas claim
could not be relitigated
and Pruett appears to
have abandoned the
argument before this
court

Pruett also argued in
his state and federal
habeas petitions that
the jury should have
been instructed that
they must unanimously
find a statutory
aggravating factor, see
Part II, supra. Pruett
also appears to have
abandoned this claim
before this court. In
any event, the merits of
the claim are
procedurally defaulted
because the claim was
not raised on direct
appeal to the Virginia
Supreme Court, see
Pruett v. Thompson, No.
CL 87-2070 (Cir.Ct. of
Va. Beach, June 14,
1988) (relying on
Parrigan ), and the
claim is nonetheless
without merit. In
Coleman v. Thompson, 895
F.2d 139 (4th Cir.1990),
aff'd on other grounds,
--- U.S. ----, 111 S.Ct.
2546, 115 L.Ed.2d 640
(1991), we noted that
Supreme Court precedent
makes clear that there
is no constitutional
right to be sentenced by
a jury, and the
automatic review which
the Virginia Supreme
Court is statutorily
required to conduct of
every sentence of death
precludes the argument
that a Virginia
sentencing jury must
unanimously find a
statutory aggravating
factor. Coleman, 895
F.2d at 145-46. The
Virginia Supreme Court
found that both
aggravating factors had
been proven in this
case. 351 S.E.2d at
13-14.

16 Pruett argues in
his brief that this
constituted ineffective
assistance of appellate
counsel. However, the
claim makes no sense in
that light because there
was nothing from which
Stallings could have
failed to appeal. We
therefore construe the
claim as one of
ineffective assistance
of trial counsel

17 We also agree
with the district court
that Pruett "has not
stated what
non-cumulative evidence
he would or could put
on, if granted another
hearing on his
ineffective assistance
claims in [the district
court]." 771 F.Supp. at
1451